Posted by Orin Kerr:
The Interesting Case of Baze v. Rees:
http://volokh.com/archives/archive_2007_12_30-2008_01_05.shtml#1194921906
On Monday, January 7, the Supreme Court will hear argument in Baze v.
Rees, a case on the constitutionality of the current method of lethal
injection that 35 states use to carry out the death penalty. The
question: Does use of the three-drug cocktail of chemicals that states
use to carry out executions amount to cruel and unusual punishment
because of the risk that state officials could make an error and
inadvertently cause the individual to suffer pain before he dies? The
briefs of the parties and the various amici are available [1]here.
Baze is a very interesting case, and I wanted to offer some thoughts
on it. (Full disclosure before I begin: I have discussed the case with
counsel for the Respondents, although of course this post only
reflects my own views.) I think that Baze is an unusual Supreme Court
case for three different but related reasons: legal, factual, and
strategic.
First, as a matter of law, there is relatively little legal
precedent on point, and the precedent that exists can be interpreted
in different ways. The Court has said that the Eighth Amendment
prohibits "the unnecessary and wanton infliction of pain," Whitley v.
Albers, 475 U.S. 312, 319 (1986). But how do you measure what is
necessary -- necessary compared to what alternative?
Second, because everyone agrees that the current method of execution
is painless if the procedure is carried out without error, the
litigation is largely over the somewhat novel question of risk of
error -- how much of a risk of error is too much for the Constitution,
and how can judges tell how risky a particular proceeding may be?
Third, strategically, I think it's fair to assume that counsel for
the petitioners have goals pretty different from what they're forced
to argue. Presumably counsel's the goal is to end executions, not
minimize the chances of pain during them.
How will these factors play out?
I gather the case will be trivially easy for the four more
conservative Justices. For the four on the right, the notion that the
Eighth Amendment's prohibition on cruel and unusual punishment could
bar a painless procedure on the ground that there is some chance
things could go wrong and inadvertently cause pain is likely to seem
rather silly. And you don't need to be an originalist to get there: In
[2]Estelle v. Gamble, 429 U.S. 97 (1976), the Court held that
deliberate indifference to medical needs could violate the Eighth
Amendment but that the accidental infliction of pain -- pain caused by
"[i]nadvertent failure to provide adequate medical care" -- did not.
Justice Marshall's opinion in Estelle favorably discussed Louisiana ex
rel. Francis v. Resweber, 329 U. S. 459 (1947), a method of execution
case decided on Due Process grounds, and suggested that it was
"similar" to the Eighth Amendment issues raised in medical care cases.
If you apply the same standard to methods of execution (which seems
sensible, given Estelle's favorable discussion of Resweber and
suggestion that it was "similar"), this issue should be easy.
For the other five Justices, though, I think this is likely to be a
more difficult case. My sense is that, these five Justices will be
looking for ways to push the states to adopt better procedures. But
it's really quite hard to know how to do that: the Justices are not
doctors, and they have no particular knowledge of how to regulate what
amount to medical procedures. Plus, my sense is that there is very
little experimental knowledge among experts as to which means of
execution are actually the most reliable in ending life without pain.
(Medical associations bar doctors from participating in executions.)
And it's not like the Supreme Court can order the creation of a
commission to study the reliability of different drug cocktails. Given
that, a Justice wanting to push states to improve their methods of
execution won't have a lot of obvious recommendations to make.
The brief for the defendant (the one making the constitutional
claim) tries to deal with these issues by making two moves. The first
move is to aggregate risks: the brief argues that when determining the
risk of pain, the Court should aggregate all of the executions that
use a particular protocol: the question shouldn't be whether a
particular execution is likely to involve inadvertent pain, but rather
the chances that someone will suffer terrible pain if the protocol is
allowed given the hundreds of people who may be executed using that
protocol. (Brief at 42). Thus, a state is "deliberately indifferent"
for Eighth Amendment purposes if the state knows that somewhere, at
some point in the future, in some state, someone will be in that pain.
The idea is to magnify the risk; it's not just one person's isolated
risk that matters, but rather the cumulative risk of everyone in the
future or in the past subject to that protocol.
The second move is to suggest that the Eighth Amendment requires a
factual hearing to hash out all the probabilities. The brief argues
that an execution protocol is unconstitutional if, "taken as a whole"
-- that is, looking at all of the executions that use this particular
protocol -- [it] presents a significant risk of causing [someone]
severe pain that could be avoided through the use of a reasonably
available alternative or safeguard." (Brief at 38). The defendant's
brief stresses that this is an evolving standard: the idea, as I
understand it, is that the constitutionality of a particular protocol
requires a factual hearing on (a) the risks and quantity of pain
inherent that protocol, (b) the number of executions that will share
that protocol, and (c) the latest state of technology and science on
reasonably available alternatives and safeguards. It's sort of Learned
Hand's Carroll Towing formula as an Eighth Amendment standard.
I highly doubt the Supreme Court will adopt this test, as it seems
too obviously to be a recipe for endless litigation. That's certainly
understandable; if you're counsel for the defendant, a day of
litigation means a day without an execution. But it's not a very
workable test, for lots of reasons; most obviously, it hinges on how
courts characterize protocols and whether they group them together or
see each slightly different practices as defining distinct protocols.
And the idea of measuring risk by aggregating risks of all the other
people who have or might be executed under a particular protocol
strikes me as just strange. Why is it relevant what happens in other
cases involving other states and other executioners in decades past or
future? And how on earth could risks be aggregated given that the
frequency of a protocol presumably must be based on a prediction about
future choices of the many different states -- and the condemned, in
states that offer individuals the choice of method of execution -- in
future decades?
Anyway, that's my sense of the case. What's going to happen in the
case is anyone's guess. If I had to guess -- and this is really just a
wild guess -- I would guess that (a) there will be no one majority
opinion, but (b) the controlling opinion will allow this particular
execution based on the details of the record and give lots of guidance
to push other states to improve their practices. That won't really
answer the constitutional question, but it will kick the ball down the
road for a few years.
Finally, I realize the death penalty is a controversial topic, but
please keep comments civil and presume good faith in your fellow
discussants (and in your blogger, for that matter).
References
1.
http://www.law.berkeley.edu/clinics/dpclinic/LethalInjection/Public/briefs.html
2. http://supreme.justia.com/us/429/97/case.html
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